Northern Ireland (Offences) Bill - Standing Committee B

[Sir Nicholas Winterton in the Chair]

Northern Ireland (Offences) Bill

[Continuation from column 258] 8.45 pm

On resuming—

Lorely Burt: I beg to move amendment No. 60, in clause 6, page 5, line 1, after ‘person’, insert
‘or the organisation with which he was associated’.

Nicholas Winterton: With this it will be convenient to discuss the following amendments: No. 61, in clause 6, page 5, line 2, after ‘him’, insert
‘or the organisation with which he was associated’.
No. 80, in clause 10, page 7, line 8, at end insert
‘in relation to both the person and any organisation that he has at any time supported.’.

Lorely Burt: The amendments relate to Liberal Democrat amendments Nos. 48, 49, 51 and 54, which the Committee dealt with previously. Amendment No. 60 would tie the behaviour of the organisation to the fate of the individual. It would allow the Secretary of State to cancel a person’s certificate of eligibility if the conditions in section 3(3) were not met by the organisation at the time when the certificate was issued or, more crucially, if they are no longer being met by that organisation. That would give paramilitary organisations an incentive to cease all illegal activity: if they do not, they put the licences of those who support them at risk.
Although the Bill deals with individuals, it is important to remember that individuals carried out terrible acts of terrorism in Northern Ireland in the name of certain organisations. The behaviour of those organisations must also be considered in relation to the Bill.

Henry Bellingham: Short and sharp. Well done.

Nicholas Winterton: I am most grateful to the Conservative Whip for saying that.

David Hanson: I thank the hon. Member for Solihull for her eminently short introduction to the amendment. However, the very reason she mentioned is the reason why I cannot accept it: she wishes to tie the certificate to the organisation with which an individual was associated, but the scheme is predicated on an individual fulfilling the eligibility criteria to enter the scheme. The conditions of eligibility refer primarily to the behaviour and activities of the individual; that  naturally includes consideration of the status of the organisation, but only in relation to the individual’s support and actions.
If there were a change in the status of an organisation and it became a specified organisation, that could lead to the loss of the certificate. However, the individual, as we have discussed in relation to previous amendments, may well have changed their behaviour dramatically. The scheme is based on the performance, activities and understanding of the individual, not on the organisation with which any individual may or may not be associated.

Sammy Wilson: Does the Minister not see a contradiction in the fact that the certificate will depend on the way in which the individual behaves but, according to the discussion that we had on the earlier amendments, whether or not the Secretary of State revokes the certificate will depend on the wider political circumstances?

David Hanson: There is no contradiction. The individual and what happens to the individual may well form part of a wider political consideration, but the scheme is designed to assess the performance of the individual, what an individual undertakes in terms of their eligibility for the scheme and whether they meet the criteria for the scheme.

Peter Robinson: If the Minister looks at clause 6(1)(b), he will see that the person’s position is tied directly to what the organisation does.

David Hanson: The eligibility criteria relate to whether an individual is a member of a specified organisation and has other associations with that organisation. The point that I am making to the hon. Member for Solihull is that the conditions of eligibility refer primarily to the individual’s performance—whether he meets the criteria for the scheme and his subsequent performance in relation to them. There may be an opportunity at some point for the organisation of which that person was formerly a member to find itself engaged in further discussions with the Government about a range of issues. That organisation will then fall outside the scheme, but the individual will have met the eligibility criteria and ultimately will have worked within the scheme. It is the individual’s behaviour and activities that are judged by the scheme.

David Anderson: Is it not true that, right across Northern Ireland, there are people who were terrorists and who served time in prison either before or after the early release scheme, but who have done sterling work in moving the Northern Ireland peace process forward? If the organisation to which they once belonged was no longer compatible with the peace process, we would not think of saying to them that they should suffer personally. Why should we apply it in the certification scheme?

David Hanson: Other clauses provide for a period between the judgments on the performance of the organisation and on the continuance of an individual in the scheme. In my view, the conditions of eligibility  refer primarily to the behaviour or activities of the individual. For that reason, I urge the hon. Member for Solihull not to press the amendment to a Division.

Lorely Burt: The Minister says that the amendment is tied to the individual and not to the organisation. However, the hon. Member for East Antrim said that the revoking of the certificate will depend on the wider political circumstances. More specifically, the hon. Member for Belfast, East made the valid point that the individual and the organisation are inextricably connected. I am sorry to disappoint the Minister, but I feel that it is appropriate to press for a vote.

Question put, That the amendment be made:—

The Committee divided:  Ayes 10, Noes 16.

NOES

Question accordingly negatived.

Peter Robinson: I beg to move amendment No. 24, in clause 6, page 5, line 6, at end insert
‘or
(c)without good excuse the person who holds a certificate of eligibility does not attend the Special Tribunal dealing with his case.’.

Nicholas Winterton: With this it will be convenient to discuss the following amendments: No. 62, in clause 6, page 5, line 6, at end insert
‘or
(c)the person has refused to answer questions from a police officer about the offences notified in the application under section 3.’.
No. 63, in clause 6, page 5, line 6, at end insert
‘or
(c)the person has refused to appear in court.’.
No. 25, in clause 8, page 5, line 34, leave out subsection (3).
No. 70, in clause 8, page 5, line 34, leave out ‘no’ and insert ‘an’.
No. 26, in clause 8, page 5, line 35, leave out subsection (4).
No. 27, in clause 8, page 5, line 37, leave out subsection (5).

Peter Robinson: Our proceedings might slow down a little now, as amendment No. 24 is a key amendment to the Bill. The ghosts of absent applicants have already passed through the Committee several times, and no doubt they will do so again, given some of the other amendments, particularly new clauses 13 and 18. However, this is the only time when the issue arises in a lead amendment. I suspect that hon. Members will address the purpose and principle of the amendment, rather than its wording.
Amendments Nos. 24 to 27 strike at the credibility of the whole Bill. Their purpose is to require the applicant to attend the special tribunal that is dealing with their case. There is no requirement in the Bill as drafted for an applicant to attend, which makes total nonsense of the notion of justice and is yet another attack on the victims of those before the tribunal.
I recognise that the amendments are not the only way in which to achieve our goal—other hon. Members have suggested alternatives—but the key is to achieve that goal. Whether or not the Minister wants to face up to the issue in this Committee—he has showed no inclination to face up to much so far—he will eventually be confronted with it.
Amendment No. 24 provides that a certificate of eligibility can be revoked if, without good excuse, the person who holds it does not attend the special tribunal dealing with his or her case. Attendance therefore becomes a requirement. The consequential amendments Nos. 25 to 27 would remove from clause 8 the words that ensure that there is currently no obligation on a defendant to appear before the special tribunal.
We should remember the very considerable concern expressed at every level on both sides of the House on Second Reading about the idea that people could be dealt with in absentia. I recall that the former Secretary of State for Northern Ireland, the right hon. Member for Torfaen (Mr. Murphy), said:
“the Government should consider seriously some of the amendments that are likely to be proposed. A number have been mentioned this afternoon, including the hugely important one about the victims appearing in court at a time when the person concerned may not have appeared. I hope the Government will listen to the amendments proposed. The difference between now and 1998 is that there has not been a referendum and the context is clearly very different.”—[Official Report, 23 November 2005; Vol. 439, c. 1562.]
The right hon. Gentleman is a former Labour Secretary of State for Northern Ireland who was one of the people most closely involved in the negotiations on this very scheme, so I would have thought that his successor and the Minister would have taken his views more seriously.
Given the inexplicable lack of a requirement to attend a special tribunal in person, it is natural for people to assume that the deal that the Government did with the IRA requires that particular provision. I point out to those people that on Second Reading the present Secretary of State for Northern Ireland denied that that was the case and said:
“I repeat the point that I made and reconfirm that no assurance was given in writing to the IRA about this specific matter ... Of course no such written assurance was given.”—[Official Report, 23 November 2005; Vol. 439, c. 1538.]
Unless the right hon. Gentleman was disingenuously drawing our attention to a written assurance as opposed to one given verbally or in some other way, there is no clear reason why the Minister should feel constrained to hold on to a provision that his right hon. Friend said at the time of the negotiations should be changed. I therefore hope that the hon. Gentleman will consider making a change on this vital issue.
When replying to the Second Reading debate, the Minister could offer no credible justification for the lack of a requirement to attend court, and no justification has been offered thus far. If the provision does not arise from the deal that the Government have done, they will clearly want to make a change. It is absurd that a witness or a victim may be required to attend a special tribunal but the perpetrator of the offence will not be required to do so.
The victims, the police and the special tribunal will all face considerable expense, difficulty and upset, but the person responsible for the offence, whom the scheme is designed to benefit, will not even have to attend and could be off on their holiday. As a result of the absence of a requirement to attend, perpetrators will be allowed to turn the entire process into a farce and a joke. Even while his case is being dealt with, a perpetrator could be walking the streets or lolling around, never having to face a day in jail, never having to face a court, while the victims and their families endure the hardship yet again of having to relive their trauma.
I see no possible justification for decisions being taken in the absence of the person responsible for the offences. It is essential that they face the court and their accusers, that the court has the opportunity to consider the arguments and hear the evidence, and that the victims have the right to see those who are responsible so that they can—I come back to that word again—have some measure of “closure” on the events. Once again, however, it is clear that the Government are on the side of the terrorists, not the victims.

Lembit Öpik: In supporting the sentiment and intent behind the amendments that the hon. Gentleman has just spoken to, I shall speak to amendments Nos. 62, 63 and 70, which stand in my name and that of my hon. Friend the Member for Solihull.
Amendment No. 62 highlights our concern about the provisions that specify that an applicant cannot be arrested or detained. That presumably means that they cannot be questioned about any offence in their application, or at least that they cannot be made to participate in the questioning process. We are concerned that that could damage the chances of the police and the prosecution of building any kind of credible case against an applicant.
Under the amendment, the refusal to answer questions of an applicant who had been arrested could be drawn to the attention of the tribunal, which could then draw a potentially adverse inference from that silence. More specifically, the amendment would provide applicants with an incentive actively to  participate in the process. Given that their certificates could be cancelled if they refused to answer questions from a police officer, they would, I hope, be more willing to co-operate and to come forward to admit to anything they might have done.
In the same vein, amendment No. 63 would provide the applicant with an incentive to appear before the tribunal. We propose revoking the licence of a person who does not appear before the court. It would give the applicants a motivation to be at their own hearing. Nothing in the Bill encourages an applicant to appear, as the hon. Member for Belfast, East said. The case can be made by a barrister, and applicants will not have to be cross-examined or face the people who have been affected by their actions. It is easy to understand why a person in that position would choose not to appear if they had no reason to do so. The amendment would provide them with a reason to attend the hearing.
Thirdly, amendment No. 70 would make a change that is very simple, but which goes to the heart of the matter. For Liberal Democrats, this is one of the crucial issues in the Bill. The suggestion that a qualifying defendant will not have to appear before the special tribunal to avail himself of the scheme is offensive. Instead, they may be represented by proxy. The Committee should think about that. As a special tribunal will have all the powers of the Crown court, the Bill creates a ridiculous situation, as victims of and witnesses to the offences could be subpoenaed—forced to appear in court to give evidence against an accused person who is not even there.
If the offender is not required to appear in person, the whole process becomes a charade. Relatives of victims and victims themselves will be forced to relive experiences caused by an individual who may not even be in the country.
As I said on Second Reading, appearance in court is essential. It would give a limited sense of relief to some victims. It would be small consolation to many of those who suffered at the hands of the paramilitaries, but it would be a start. It would clearly show that society believes that what the offender did was criminal and continues to be wrong. Although the offender would be released on licence, he or she could not wash their hands of the offences of which they had been found guilty.
The Government have offered absolutely no credible justification for a defendant not being required to appear in court. Meanwhile, in comparison, victims and their representatives have given a cast-iron explanation of why that is necessary in terms of natural justice and as an essential part of any judicial process that is to be taken seriously.
In opposing the amendment, the Minister must explain how on earth trial by proxy can have anything like the same coherence as trial in the orthodox fashion, which one would expect in a court. He must also explain why he can pretend that the Government have considered the matter in the context of victims’ requirements, when everything is weighted towards making it comfortable for the defendant.
So far, I have heard nothing from the Minister, his boss or any other Government spokesperson as to why the measure is in the Bill. We have been assured many times that it is not part of a deal with Sinn Fein. Forgive me for being sceptical, but I see no rational or ethical justification for the exemption of a defendant from attendance in court. However, I look forward to hearing what the Minister has to say.

Gordon Banks: I want to pick up from where the last two speakers left off. Labour Members have significant concerns about the fact that the Bill places no obligation on the defendant to appear before the special tribunal in person. I echo the sentiments expressed earlier by my hon. Friend the Member for Glasgow, South.
It is particularly difficult when witnesses who may be victims, or the family of victims, can be forced to appear and go through a gruelling, difficult process, but the persons who stand to gain most from that process are spared that moral responsibility. The lack of attendance by the defendant shows no acceptable recognition of the crimes with which they are charged or the procedural process.
I bring to the Minister’s attention comments made by Dave Cox, a former Metropolitan police commander who worked on the Stevens inquiry on security force collusion in killings, about what he called the “extraordinary unfairness” of a situation in which a witness might be required to appear before a tribunal, but the defendant is not required to do so.
I am sympathetic to comments made in relation to clause 4, and the requirement to attend would remove the possibility of false applications. I urge the Minister to give the Committee an understanding that he is prepared to consider, between now and a later stage in the process, the forceful argument that defendants should be compelled to appear.

Huw Irranca-Davies: I also support the aims of the amendments, and I made my position clear in an intervention on Second Reading. This issue goes to the core of the Bill. Although we may have fundamental disagreements in Committee about the aim of the legislation, there is a cross-party feeling among many Members that one of its effects should be to achieve, to whatever degree of effectiveness is possible, some feeling of justice—a sense that criminal and terrorist activities have been displayed for people to see, that it is right that they are on record and that the person concerned appeared in person to acknowledge them.
I am sure the Minister realises that there is a significant difference between the appearance of a proxy to acknowledge the offences in place of the individual concerned and the appearance of that individual. Later amendments deal with the issue of expressions of remorse—I shall not test your patience by dwelling on that, Sir Nicholas—but those we are considering do not. They simply aim at getting the individual to appear in person so as to hear the roll call of their criminal or terrorist activities.

Jeremy Hunt: The hon. Gentleman speaks most eloquently. Will he this time send the Government a clear message by voting for the amendments?

Huw Irranca-Davies: The hon. Gentleman tempts me. I shall see, depending on the Minister’s response, but I have progress to make yet.
The amendments go to the core of our discussion, because mention has previously been made—this is very pertinent to the amendments—of the creation of an amnesty under the Bill. It is not an amnesty, because that would wipe the slate completely clean and give a total pardon. Although the Bill does not create an amnesty, we want not only the certificate and the record pertaining to the individual, but the individual himself—standing there, accounting for the things he was responsible for.

Mark Todd: Can my hon. Friend think of any circumstance in which the individual’s non-attendance could be justified? I have attempted throughout consideration of the Bill to think of various hypothetical circumstances—we had a good exercise of that kind earlier—but I cannot for the life of me think why an individual in the relevant circumstances should not attend. Can my hon. Friend throw any light on that?

Huw Irranca-Davies: My hon. Friend makes a fair point. I struggle to think of such exceptional, rare circumstances, although there may be some.

Mark Hendrick: Does my hon. Friend agree that such a case might be one in which a person’s identity could be revealed as a result of a court appearance? Is it reasonable to suggest that, in the same way that undercover police officers are shielded in court, arrangements might be made to allow someone to attend court without being recognised?

Huw Irranca-Davies: My hon. Friend gives an interesting illustration to try to identify a possible exception, but what he describes would not preclude the individual’s appearing in court, albeit behind a screen or in disguise. That is a fundamental point.

Tobias Ellwood: I am trying to work out when an amnesty is not an amnesty. When it sounds like an amnesty and looks like an amnesty, I think it is an amnesty. The point about informants is a red herring.

Huw Irranca-Davies: When is an amnesty not an amnesty? When it clearly is not in this Bill. An amnesty has to be complete. I do not have the details on me, but I did some research and will happily forward the results to the hon. Gentleman, which show where amnesties have happened. An amnesty is technically, and clearly legally, a complete wiping clean of the slate.
The hon. Gentleman has talked about truth and reconciliation. I appreciate the analogy, but this is not truth and reconciliation, nor is it akin to the situation in Uganda. There, people involved in the Lord’s Resistance Army came back after murdering their own kinsfolk and stood in front of their tribe and said, “I  am guilty for what I did, I am remorseful. Please accept me back.” This is not that—it is very different legislation.
I am conscious of the time, so I shall conclude. There is a strong feeling that, for families that have lost loved ones to have some sense of justice, however small, there needs to be an appearance in court. I look forward to hearing the Minister’s response and ask him seriously to consider the views across the Committee on the issue.

Laurence Robertson: For the record, we support the amendment tabled by the hon. Member for Belfast, East. I do not intend to speak at length, because we are coming to new clause 18, which would go a little further in replacing the tribunal with a court. It would also place on the defendant a duty to appear in front of that court, and make it a criminal offence if he did not.

Mark Durkan: I rise to express our support for amendment No. 24 and to address a number of other amendments.
There are many reasons for opposing the Bill, and many reasons why we in the SDLP oppose it—the absence of a time limit; the inclusion of those who have either killed while acting in the name of the state, or solicited or been complicit in killings by others while they were acting for the state; and the outrageously lax treatment of loyalist terror. Those are all enormous failings, and each is a reason why we have called for the Bill to be dropped. However, for the widest possible cross-section of the public in Northern Ireland, symbolically, the most appalling feature of the Bill is the fact that perpetrators do not have to appear in court to avail themselves of the scheme.
Those people are to be spared even the vague discomfort of possibly having to look their victims in the eye, or even catching their eye. That means that provos on whose behalf the Bill was negotiated can come home with the pleasure of a media opportunity, surrounded by their supporters—“home comes the hero”. That leaves those who were party to collusion able to celebrate in quiet anonymity, as any chance of the emergence of the truth about their misdeeds evaporates under this legislation.
Those are the lengths to which the Government and Sinn Fein have been willing to go in this pact to cover for each other and to deny victims of all kinds the truth. The provision in clause 8(3), for instance, did not appear out of nowhere. It was specifically negotiated into the Hillsborough side deal in 2003. In recent weeks, since the legislation was published, Sinn Fein has been happy to say constantly, “This legislation comes from Weston Park”. It deliberately tries to airbrush Hillsborough 2003. The paper produced by the Government on that occasion provided that nobody would have to appear—so the provision goes right back to that time—but it also provided that the scheme would cover all scheduled offences, which Sinn Fein has been in denial about, saying that it was not aware of it and that it was written in only recently. Even the Government have pretended  that Sinn Fein knew nothing about it, even though the public record shows different and “all scheduled offences” can mean only “all scheduled offences”.
That is why the Government are not proposing any amendments today, in spite of what they have said before. It is also why they will vote down any amendments tabled by the rest of us. That is so that, when they propose any amendments, it will be in the House of Lords, so that they can keep their word to Sinn Fein that they would not let the DUP, the UUP, the SDLP or anybody else lay a finger on the Bill. Only in the House of Lords, which the Government do not control, might they have to make some adjustments. Somehow, they will be released from their compact with Sinn Fein there and will be allowed to dance on their feet a little.
When amendments are tabled, no doubt we will even be treated to Sinn Fein claiming the credit for one or two—not least because some issues on which the Minister has said he will reflect involve tightening the Bill in favour of the perpetrators. A few loose threads were identified in earlier discussions. What does that mean to us as members of the Committee and Members of the House of Commons? We have to ask how this has come to be such an upside down world. We are meant to suspend our democratic parliamentary judgment when the magic words “for the wider good of the peace process” are used and accept that some other unexplained imperative should override the logic that is coming from all Members, including those on the Government side of the Committee, which is that people who avail themselves of the scheme should at least have to participate in the proceedings, or even part of them.
As well as telling us that the Bill is about closure, the Minister has told us that it is about people having to take responsibility for their actions. We know from earlier debates that people will not even have to take responsibility for their own application. Now they will not have to take responsibility even to turn up. We have to ask how we, as democratic parliamentarians, find ourselves in this upside down world. We, the elected Chamber of this Parliament, are to be denied the right to make logical, proper amendments that even the Government have difficulty arguing against—all for that to be done by an unelected Chamber on behalf of people who carried out thoroughly undemocratic and unlawful deeds.
Of course, it is not just we democrats who find ourselves in an upside down world and treated as though we are the subversives for speaking up for the democratic, public and lawful interest. As the hon. Member for Montgomeryshire has said, we also have the extraordinary situation whereby a perpetrator does not have to appear in court, but a victim who is a witness can be compelled to appear, even though that person may, and in all chances will, fundamentally object to the whole proceedings.
What happens if the victim does not appear? He or she risks imprisonment—the very outcome that this whole process is designed to ensure that perpetrators  avoid. That is how devoid of principle the Government and Sinn Fein are in straying and taking forward the Bill.
That may suit the IRA, the UDA, the UVF, members of the force research unit and people in special branch who were up to all sorts of skulduggery, but the rest of us are left with questions. How can anyone stand over such a perverse and unjust outcome? The magic words “for the wider good of the peace process” simply do not wash. Many of us have taken many risks and many stands. Many of us have suffered many costs in standing up for the wider good of the peace process. The Bill has nothing to do with the wider good of the peace process and this provision is about protecting the narrowest possible interest of people who have a lot to hide. The Bill is about accommodating people by hiding those things in the name of closure—closing down the truth in the name of closure.
That is why we stand ready to support amendment No. 24, which at least would give the perpetrator some incentive to turn up in court. I am equally happy to support the other amendments, including those that we have tabled, which would either give perpetrators an incentive to appear in court or oblige them to do so. Those are amendments Nos. 25 to 27, 70 and 62.

Lady Hermon: I rise to speak briefly, but strongly, in support of both amendment No. 24, which was tabled by the hon. Member for Belfast, East, and other amendments in the group. The issue of non-appearance in court was touched upon on Second Reading. The Minister, in concluding that debate, said that non-appearance in court is “a difficult issue”—which is an understatement, if I may say so—and that the Government had taken a judgment because they
“want to get individuals through the scheme.” —[Official Report, 23 November 2005; Vol. 439, c. 1617.]
That is the feeble excuse that he offered.
The hon. Member for Foyle is correct that the provision regarding the non-appearance of the defendant was agreed with Sinn Fein, and endorsed by the Irish Government with the British Government, at Hillsborough in 2003. I am ashamed to say that of my own Government. On Second Reading, the Secretary of State confirmed that it was agreed at Hillsborough that
“the applicant would not be required to be present at the trial.” —[Official Report, 23 November 2005; Vol. 439, c. 1563.]
Despite the point being made by the Secretary of State—and repeated by the Minister—on Second Reading that non-appearance of the defendant in court is part of an international agreement between the Irish and British Governments, it is, I think, the unanimous view of the Committee that the British Parliament remains a sovereign Parliament, and therefore this Parliament can amend the Bill to include a provision that requires a defendant to do the minimum to achieve an amnesty—that means a court appearance.
I hope the Minister will be persuaded by voices from right around the Committee that if any amendment is to be accepted it should be one that would require the defendant to appear before a tribunal.

Meg Hillier: As a former journalist, the headline that jumped out at me when I first read the Bill was this issue of non-appearance. Forgive me, I am a new Member of Parliament: I meant to speak on clause 8, but I gather from looking at the amendments and from what my colleagues have said that this is the time to make my point. Therefore, I shall speak not to the amendment, but about the principle of non-appearance.
Whatever may have been discussed at Weston Park, we are in a different place now, so although I find it difficult to vote for this proposal, I will vote with the Government, because I believe in voting with the Government. That is what I was elected to do—[Interruption.] I feel very uncomfortable—[Interruption.]

Nicholas Winterton: Order.

Meg Hillier: Perhaps I am not expressing myself clearly, Sir Nicholas, because I find this a difficult matter to discuss. There is a real issue about people appearing publicly and declaring what they have done. Perhaps I can explain my reasoning more clearly to the hon. Members who were baying at me from a sedentary position. I do not know what went on at Weston Park, and I do not know the detail of the difficult negotiations that went on to get us to this stage. However, I have some trust in my right hon. and hon. Friends on the Front Bench—in this Minister and in previous Ministers. They would not have given things away for no reason.
However, I want some reassurance that the serious concerns shared by me and hon. Members across the Committee will be taken seriously. Perhaps the Minister can give me some of the reassurances that I asked for on Second Reading, but did not really get in the summing up—although I appreciate that it was difficult to cover all the points raised in the time available. I would be glad if the Minister addressed the points that I raised on Second Reading now.

Ben Wallace: I have spent a lot of time in Northern Ireland, as people probably know. I felt that the Bill was unpalatable and that many of the measures were tough for many people to take—victims, law-abiding citizens, members of the security forces and people from all parts of the political spectrum.
In my time, I have seen mainstream parties such as the SDLP marginalised every time a deal is done with Sinn Fein behind closed doors.
SDLP Members stuck their necks out in south Armagh and struggled for democratic principles and decency. Every time that this Government have moved closer to doing deals they have let others down—they  have abandoned some of the hard principles that political parties in Northern Ireland have fought to defend.
For many years, I have swallowed such measures and lived with them. I have seen on television men whom I arrested. I have seen—

Nicholas Winterton: Order. This is an excellent speech, but I hope that it can be more closely allied to the amendment.

Ben Wallace: Sir Nicholas, it shall be.
The point is that we have all had to compromise on all the measures; we have all found them distasteful throughout. I know from the Minister’s language in Committee that he has felt uncomfortable with some of them, as any democrat would do. This measure—this final part—will allow no one to appear before the tribunal, and no one will be induced or incentivised to apply to it unless he is likely to be caught later. It enforces no time limits and includes nothing to force anyone to face the music out of decency. Let us not forget—we can argue about whether it is an amnesty—that it is a very good deal. No one can argue that the terrorists in Northern Ireland are not getting a very good Christmas present out of the Bill.
It is one step too far to allow people not to turn up. That is why the amendment is so important. The hon. Member for Hackney, South and Shoreditch (Meg Hillier) says that she is uncomfortable, but that she will still vote with the Government. I have been uncomfortable for eight or 10 years, or since 1994, with some of the measures, but I have lived with them and have sacrificed my feelings, not to mention those of other people, to get to where we are today.
It is of no comfort to the people of Northern Ireland that the hon. Lady can say that she is uncomfortable with the Government’s position, but will vote for it. This is serious. Men and women in Northern Ireland will have to live with the consequences when they see mass murderers walking up and down their streets having never appeared in court. It is not good enough to try to get out of it by saying, “I am just here to back the Government.” That is more insulting to the people of Northern Ireland than most of the things that I have heard today. If we do not accept the amendment, and the Bill goes through as it is, we will create a bigger injustice for the future, and we will have to unpick it in months or years to come.
I urge members of the Committee, of all parties, to back the amendment out of decency and for the principle that the victims, and the men and women who are democrats, deserve to have their position properly recognised.

Jeffrey M Donaldson: I have listened carefully to what has been said, and I am delighted that the hon. Members for Ochil and South Perthshire (Gordon Banks), for Ogmore (Huw Irranca-Davies), and for Hackney, South and Shoreditch have contributed to the debate. They have expressed strong reservations about this aspect of the Bill. May I ask them, and the rest of the Committee, some questions?
If, as seems to be the case, the Minister resists every amendment that is tabled in Committee, what is the point of the exercise? What is democracy all about? What is the point of being a Member of Parliament and having a strong view on something if one cannot ultimately influence the outcome of legislation? The Bill could get through the Committee and the debates on Report and Third Reading without the House of Commons making a single amendment, despite the strong reservations among Labour Members.

Huw Irranca-Davies: The hon. Gentleman raises an important point, but he must appreciate that there is more than one way to skin a cat in our democratic process. He might be interested to know that a number of hon. Members have—in addition to what has gone on in Committee—been working elsewhere to negotiate, to exert pressure and to raise concerns to achieve some movement. I am hopeful that what we see in response will move the process on significantly.

Jeffrey M Donaldson: I appreciate that intervention, which suggests that the Government will not accept amendments so long as they are tabled by Opposition Members. Amendments tabled by Members of Parliament representing Northern Ireland constituencies and the people who will be most affected by the Bill count for nothing. In the end, only deals that are done by the party of government behind the scenes and not on the Floor of the Committee will bring about change.
Of course I want change, and obviously there is more than one way to skin a cat, but does it make the people confident in the democratic process in this place when that is how we do business and when we do not listen to the voice of the people who have a mandate from those who are most directly affected by the Bill? That says something.

Meg Hillier: I have made a point of talking in detail to members of all parties represented in Northern Ireland and to Ministers and others to ensure that I am well briefed on the very concerns that the hon. Gentleman expresses.

Jeffrey M Donaldson: I thank the hon. Lady for that. We are always willing to talk to her at any time about the issues.

Peter Robinson: What is the benefit of the hon. Lady talking to people from Northern Ireland and all the other parties if, even though she recognises that they are right and her judgment leads her to believe that there should be change, she says, “Well, I am elected to support the Government.” She is elected to exercise her judgment, is she not?

Nicholas Winterton: Order. I hesitate to intervene because I am fascinated by the exchanges, but they are not entirely relevant. I do want to make progress, and perhaps hon. Members will speak to the amendments that have been selected if they want to participate further.

Jeffrey M Donaldson: Thank you, Sir Nicholas. I shall draw my remarks to a close.
The arguments that Opposition Members have advanced so many times today and in previous sittings have been unanswerable. Yet there is no change. I simply urge the Minister to reflect not only on what we have said, but on what some of his hon. Friends have said, and to find it within himself to concede something in the interests of justice and of bringing some accountability back to a process that is, frankly, unaccountable and unjust.

David Hanson: I recognise, as I believe the Committee does, that much of the Bill is very difficult. The hon. Member for Lancaster and Wyre said that it sometimes seemed as though I found certain issues that we have discussed unpalatable. That observation is correct, but the Government and I have introduced the Bill to ensure that we solve some of the problems and issues in the long term and that we prevent more people from becoming victims in Northern Ireland.
I have reflected on what has been said, and I recognise that my right hon. Friend the Member for Torfaen, who was the Secretary of State for Northern Ireland until the general election, said on Second Reading that the issue was a matter of concern to him. I should say to the hon. Members for Montgomeryshire and for Belfast, East that trial in absentia is a contentious matter that the Government have covered in the Bill. It was discussed, for the very reasons that I gave, in debates on the legislation and in the proposals that were published in 2001 and 2003 at Hillsborough and at Weston Park, which the UK Government advanced in conjunction with the Irish Government.

Mark Durkan: I want to correct the Minister on the question of non-appearance, which emerged only in the Hillsborough document. That was negotiated exclusively with Sinn Fein. No one else agreed it at or after Hillsborough.
Will the Minister address one point that he made? He said that the Government were including trial by absentia, among other things, to prevent people from becoming victims as in the past. Is someone saying that unless the Bill is passed there will be more victims?

David Hanson: May I correct myself? The proposals published at Hillsborough in 2003 stated that trial in absentia would be a significant part of those proposals that have led to the Bill being put before the House now, as a result of IRA acts in July. That is the reason for presenting it now. I have told my hon. Friend several times before today that there is no implicit threat. The reason for our current position is the action that the Government have taken to get us here. The acts of completion relate in part to tackling outstanding issues affecting the people covered by the Bill. [Interruption.] Perhaps I may make some progress before taking further interventions.
It is important to explain why the Government have put the provision in question in the Bill. It is not least because it featured in the published document of 2003. However, I also want to offer to my hon. Friends the Members for Ogmore, for Ochil and South Perthshire,  for Hackney, South and Shoreditch and for South Derbyshire (Mr. Todd) another justification for us including trial in absentia.
Later clauses—clause 8 in particular—provide that an individual who does not return to the jurisdiction can be tried in his absence. That is not because we do not want individuals to face the court and justice. As some hon. Members said, I do not regard the provision as an amnesty. There will be a criminal charge and conviction, and those concerned will be released on licence under the scheme. We have framed the Bill in the way that we have because trial in absentia must be better than no trial at all. The Government have provided for it because it may still be possible under the Bill, whether we like it or not, for individuals not to return to the jurisdiction but to have their case tried anyway. It is because we want trials to take place that the Government have made trial in absentia possible.
Before I move on to deal with hon. Members’ comments on their amendments, I remind them that I have met victims whose relatives have been shot and murdered by the IRA and other organisations. One of the things has been raised most often is trial in absentia. Indeed, it was raised on Second Reading by my hon. Friends, and they raised it again today. We did not decide lightly to include it. We did it because it was in the published proposals, because it was part of the progress that has brought us to where we are today, and because, difficult though it is for victims and my hon. Friends, we feel that it is the way to make progress with the scheme. We risk failing to bring individuals to trial if trial in absentia is not in the Bill.
I realise how difficult the problem is, and not just for my hon. Friends. I also recognise the power of the arguments that have been brought by the hon. Member for Belfast, East and others. The Government have devised the policy and proposed it, and naturally I want it to be implemented. For the reasons that I have explained, trial in absentia means that trials will take place of some individuals who may not return to the jurisdiction otherwise. There is a balance to be found. [Interruption.] The hon. Member for Tewkesbury (Mr. Robertson) can shake his head, but we must find the balance. My judgment is that trial in absentia is one way of ensuring that people are brought to trial.

Laurence Robertson: The Minister has mentioned trial in absentia often enough to convince me that he thinks this is the best provision in the Bill.

David Hanson: If the hon. Gentleman thinks that I have presented the Bill to the House and the Committee with any joy in my heart for what the Government are proposing, he is sadly mistaken. He should know that the Government are acting with a heavy heart, but we are taking these measures for a purpose, which is to ensure that people in Northern Ireland have a better life and better prospects than they have in the past—[Interruption.] Let me finish, if I may.
Naturally, we wish to preserve the policy on trial in absentia; we published a draft measure on that in 2003, and it is included in the Bill. However, I acknowledge the strong feelings that have been expressed by victims’ groups and by hon. Members on Second Reading, as well as the strong case put by the hon. Member for Belfast, East and his colleagues on their position and that of their constituents. I acknowledge, too, the strong feelings put to me on this issue not only in Committee today, but privately by my hon. Friends. Because I acknowledge those strong feelings, I am willing to make the following undertaking to the Committee. If the amendment is withdrawn, I will consider what steps I can take while the Bill is in this House—not in the House of Lords, which my hon. Friend the Member for Foyle mentioned. The House of Lords has many qualities—I have not yet come to a conclusion on what they are—but one of them is that it is not elected, whereas the House of Commons has a democratic mandate. If hon. Members wish me to do so, I will take a serious look at the points relating to trial in absentia, and if I am able to bring back proposals, I undertake to do so on Report in the House of Commons in January.
I ask the hon. Member for Belfast, East to withdraw his amendment because it will have consequences for other aspects of the Bill, which I need to reflect on in detail. I need to make sure that I take into account what has been said in Committee, on Second Reading and by victims’ groups. I hope that the hon. Gentleman will reflect on what I have said, register the tone in which I have said it, and acknowledge the points that I am making.

Jeremy Hunt: Would the Minister consider coming to the Committee on Thursday with his proposals, rather than waiting until the legislation is being considered on Report?

David Hanson: The Government will need sufficient time to assess the issue and its implications and how we might manage it. I am aware that hon. Members could say, “Well, the Government should have been looking at this matter and making decisions between Second Reading and Committee stage,” but I need sufficient time to reflect on what has been said on Second Reading and in Committee and to consider how best to respond to these genuine concerns at an appropriate time.

Sammy Wilson: I am confused by the signals that the Minister is sending. He is saying that he wishes to have time to reflect, but prior to that he told us that if we do not have trial in absentia we will—to use his own words—risk failing in this whole venture. He also told us that if we do not have trial in absentia, we will not have any trials at all in many cases. Which message is the Minister sending out: that he wishes to be accommodating, or that he believes that the provision is so essential that the Bill will fail without it?

David Hanson: I hope that the hon. Gentleman listened carefully to the points that I made in my preamble. As I have said, it is clear that all members of the Committee have strong feelings, and strong  feelings were also expressed on Second Reading. I need to reflect on them and, potentially, I shall bring forward issues that can be addressed on Report. I say to the hon. Gentleman that the reason why I have made a defence of clause 8, which we will come to later, and the reason why the Government have proposed it—difficult though that has been, difficult though it is and difficult though it will continue to be—is that we want to get individuals through the scheme and to resolve the issue of on-the-runs and individuals covered by the scheme as a matter of some urgency.
I am saying to the hon. Gentleman, and I hope that he is listening very carefully, that I have reflected on the Second Reading debate, on what has been said to me outside this Room and the Committee and on what my hon. Friends say in this Committee. I wish to reflect strongly on those views. I give an undertaking to the Committee that I will reflect between now and Report in the House of Commons on whether to make changes to this aspect of the scheme. I hope that the hon. Gentleman has listened carefully to me, because if he has, he will recognise that there is great merit in what I have said to him and to other hon. Members today in response to the amendments.

Ben Wallace: Will the Minister please clarify one point? Part of what he said sounded almost like a threat. What is the Minister asking for time to reflect on? Is it purely the technical aspects of the amendments—is the problem that Opposition amendments are not good enough—or does he want to discuss the issues with other parties? What is he asking for? I am not sure. He seems to be saying that if the amendment is withdrawn we might get our way, but if we press it to a vote we certainly will not. Is that correct?

David Hanson: The hon. Gentleman will be aware that if the amendment is pressed to a vote, we will potentially be unable to debate it on Report. That will be a matter for the Speaker.
There is a range of issues to be considered. The points made by hon. Members today in Committee, on Second Reading and outside the Committee give me pause to reflect on the issue that has been raised by the hon. Member for Belfast, East. The amendments would have consequential, knock-on effects throughout the Bill and we need to consider them in the context of government. I need also to reflect on the policy issue. However, I have said to the Committee today—I have given the strongest undertaking that I can—that I will reflect on the issues, that I will reflect and bring back issues on Report in the House of Commons.
Hon. Members, including the hon. Member for Belfast, East, will be able to read what I have said and will understand that, when I come back on Report, I will have considered the discussions today in Committee with my hon. Friends and reflected on what happened on Second Reading and on what the hon. Gentleman has said today. When we discuss this on Report, all hon. Members will be able to judge what the Government bring forward at that stage and vote for it or reject it. However, I hope that hon. Members  will listen very carefully and, on the basis of what I have said, withdraw the amendments and allow the Government time for that reflection.

Lembit Öpik: The Minister contradicted himself again, as the hon. Member for East Antrim said. He is offering us a deal, so far as I can see, but before we look at the deal, we have to look at the contradictions in what he said leading up to it. He said that this measure—the trial in absentia—was introduced as a result of acts of decommissioning by the IRA. Then he told us that trial in absentia was introduced because the alternative was no trial at all. I have been told that often a person with two good reasons has none. [Interruption.] Yes, I thought that it was quite good. I am not sure why the Minister felt that he had to give us two reasons that did not necessarily add up.
The Minister’s second point is that if the hon. Member for Belfast, East withdraws the amendment and does not press it to a vote, and if I do not press amendment No. 70 to a vote, which I had been hoping to do, then he will be willing to reflect on the issue. I think that he is trying to hold us to ransom.

Tom Harris: Will the hon. Gentleman please explain whether he is upset at the Government’s refusing to compromise or at their agreeing to do so?

Lembit Öpik: I would love to believe the offer that the Minister is making. I hope that he is sincere, but if he is, he will not hold the Committee to ransom based on whether we press the amendments to a vote. The Minister does not have a responsibility—

David Hanson: I am not holding the Committee to ransom. The hon. Gentleman should recognise that, at the end of the day, my colleagues and I will probably have a majority on these matters in the House of Commons. I am making a genuine discussion point for the hon. Gentleman to consider. If he chooses to ignore it, that is a matter for him. I am saying in response to the points raised by the hon. Member for Belfast, East and by my hon. Friends the Members for Hackney, South and Shoreditch, for Ochil and South Perthshire and for Ogmore that I will reflect on these points. That applies also to the points raised by my right hon. Friend the Member for Torfaen and by the people I have met who are victims of the crimes that we are dealing with. If the hon. Member for Montgomeryshire cannot accept that, that is a matter for him, but I am trying to help the Committee by making these proposals.

Lembit Öpik: I am determined not to prolong this exchange, but I will say this. The Minister may express irritation at the points that I am making, but that pales into insignificance in comparison with the affront that I feel when he implies that if we press our amendments to a vote, he may reconsider the offer that he has made. As far as I can tell—
Mr. Hansonrose—

Lembit Öpik: I will give way in a minute. As far as I can tell—the Minister can confirm in his intervention whether this is correct—he is saying or implying that if we do not press the amendments to a vote to express on the record our strongly held views, so that another place can analyse how strongly we felt those views in Committee, he may consider introducing something on Report. If he is saying that, I welcome it, but I do not welcome it if he says, “However, if members of the Committee force the amendments to a vote, I will not reflect on this matter. I will not introduce an amendment on Report.” Can the Minister confirm that his commitment to reflect on the issue is not conditional on whether we vote on it in Committee?

David Hanson: The hon. Gentleman has been a Member of the House of Commons, according to my recollection, for eight and a half years. I have 13 years of experience in the House. Like me, he will know that if the amendment is voted down this evening, Mr. Speaker, in his jurisdiction, may not consider calling an amendment to the same effect at a later date. He may do so, but there is no guarantee. That is the simple point that I am making. I am quite happy if the hon. Gentleman wants to press the amendment. In that case, we will vote and my hon. Friends will vote according to their consciences and views. I am simply trying to put it to the hon. Gentleman that this is an opportunity for me to say, as I am trying to be helpful in Committee, that I will reflect on these matters.

Lembit Öpik: We are debating process. The points have been pretty well made, but let me say this to the Minister, and he should reflect on it. In the eight and a half years during which I have been representing my party on Northern Ireland issues, the Government have, by acting in bad faith on a number of occasions, persistently eroded the good will that has been extended to them by Opposition parties. My concern is that if we do not make clear in the record now the strength of feeling in Committee, there is a danger that that could influence the interpretation of that strength of feeling when the record is analysed in another place.

Russell Brown: The hon. Gentleman and I have been in the House of Commons for the same length of time, some eight and a half years, so we both know that it is not uncommon in Committee for a Minister to meet a point by saying that further consideration will be given to an issue if the amendment is withdrawn. I have the greatest respect for the hon. Gentleman, but there is no need to grandstand on this issue. The point has been well made and well recorded by Hansard, and we should move on.

Lembit Öpik: I am sorry that the hon. Gentleman feels that I am grandstanding, but as he obviously knows and as other hon. Members have pointed out, the issue that we are discussing is one of the core issues in the debate. If I feel strongly about it, it is because I am frustrated by what I believe to be an illusory threat by the Minister that the matter may not be debated on Report. I have served on many Committees, as has the hon. Gentleman—I think that all of us are fairly  experienced in these matters—and everyone knows that if the Government want to put in an amendment on Report, there is a pretty good chance that they can do so. The problem is putting the same amendment in twice. However, it is not beyond the wit of the Minister and some of the most impressive civil servants that the country is blessed to be served by—some of whom are here today—to find a way to get the amendment in.
I want to believe that on this occasion the Minister will come up with something that satisfies our needs and, more importantly, the victims’ need to see the defendants in court. Having said that, given everything else that the Minister and the Secretary of State for Northern Ireland and, by implication, the Prime Minister have said about the need for this in absentia element in the Bill, I am at a loss to understand how we can be optimistic that he will introduce something that will satisfy the requirements of the hon. Members for South Derbyshire (Mr. Todd) and for Ogmore, the right hon. Member for Torfaen, the hon. Member for Hackney, South and Shoreditch and just about every other person who is sitting in this room, whether or not they have expressed an opinion.
I am concerned about the question of voting. We must not dwell too long on the process, but I ask the Minister to understand that I do not want to be sitting here in the middle of the night any more than anybody else does. However, I am desperately concerned about letting down the people to whom I give the greatest consideration—the victims—by playing into the hands of the Government, who could then abuse the fact that we did not vote at this stage.
I respect the Minister and what he seeks to do, but on the basis of recent experience of the Government I do not have much faith that they will produce something with which we are satisfied. I am in somewhat of a dilemma, but I still believe, on balance, that I ought to press amendment No. 70 to a vote, bearing in mind that it changes only one word. Instead of stating that there is “no obligation” on a defendant to appear before the Special Tribunal, clause 8 would state that there is “an obligation” to appear. If the Minister is not willing to accept even that change, one has to wonder how dramatic his offer on Report will be.

Nicholas Winterton: Order. Before the Minister responds, let me say that if the hon. Gentleman wishes to propose amendment No. 70, I would be happy that he should do so at the appropriate time, but it is not now.

David Hanson: The hon. Member for Montgomeryshire is entirely the owner of his own conscience and his own vote. He can do what he wishes. We have had the best part of 12 or 15 hours in Committee during the past week and a half. Members have known when I have fiercely resisted amendments and invited my hon. Friends to vote against them. I have suggested that I shall reflect on the meaning of the amendment of the hon. Member for Belfast, East. I hope that hon. Members will reflect on what I have said and on my approach to the amendment in the light of the victims’ comments that we heard about on  Second Reading and the comments of my hon. Friends in the Committee and the hon. Members who introduced the amendments.

Peter Robinson: Before I deal with my judgment about pressing or withdrawing the amendment, it might be proper to point out that it would have been easier to make that decision had the Minister not commenced with a robust defence of the legislation. He indicated that it had been drafted as it now stands for a purpose—clearly, it was. He said that the intention was to prevent the creation of more victims such as there had been in the past. There then followed an intervention by the hon. Member for Foyle, who wanted to know if there was a threat that there would be more victims if the measure was not approved in its present form. The Minister’s response was that there was no such threat, which seemed to remove the argument that the legislation was intended to prevent the creation of more victims in the future.
However, the nature of this Committee and the mathematics of the House is such that, given the Minister’s assurances, the only thing advanced by pressing the amendment to a Division would be that somewhere, tucked away in the record of this debate, would be the result of a Division. I have been in the House long enough—longer than the years mentioned earlier combined—and I know that if the amendment is pressed to a Division, if we are not satisfied with the Minister, his hon. Friends will be satisfied and I know what the likely outcome of that Division would be. However, even without the Division, there will be a clear record of the dissatisfaction of the Minister’s hon. Friends, and that will rest in the record of the debate. The record of a vote would be likely to convince people in another place, but I think it just as likely that this debate, enhanced as it has been by the contribution made by the hon. Member for Montgomeryshire, will do so too.
In exercising my judgment, I have to recognise that we shall simply lose the vote if we press the amendment to a Division. That being the case, logic would have me withdraw the amendment. However, I do so making two points that it is worth the Minister bearing in mind. My withdrawal of the amendment does not allow him to escape the issue, because new clauses 13 and 18, on which there will no doubt be Divisions on Thursday, deal with exactly the same issue.
Cooler counsels might have allowed the Minister the time between now and Thursday to convince the supporter of those new clauses of his genuine intent and the direction of his consultations. Some of us are a little suspicious that the Government cannot agree to any amendments today because they do not control what an amendment might be. They have bought into a deal with Sinn Fein and need Sinn Fein approval before they move from it. The very least that each Committee member can expect from the Minister, to whom I am happy to give way if he wants to give us the assurance, is that he will show the same commitment to fulfilling the undertaking that he has given to this Committee that the Government have shown to Sinn Fein. It seems that he is ready to do battle to keep the Government’s word to Sinn Fein in respect of that  deal. If he genuinely wants the Committee to move on and give him the opportunity to consider these matters on Report, we want a clear commitment not only that he will consider the issue, but that he is leaning towards trying to resolve it.

David Hanson: I am in danger of repeating myself, but I say again that I give the Committee an undertaking that between now and Report in the House of Commons the Government will reflect on what changes could be made to this aspect of the scheme. That is the undertaking that I give the hon. Gentleman. I appreciate his comments, because we have an opportunity to reflect on them, both in and outside the Committee. I hope that he will be satisfied with the outcome in due course.

Peter Robinson: It is the outcome that concerns me. I am not going to involve myself in the party politics of trying to score points on this issue. The Bill will never be acceptable to me, but I said at the beginning that it could be made less unacceptable if certain changes were made. On that basis, I am prepared to listen to what the Minister says on Report, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Motion made, andQuestion put, That the clause stand part of the Bill:—

The Committee divided:  Ayes 16, Noes 13.

NOES

Question accordingly agreed to.
Clause 6 ordered to stand part of the Bill.

Clause 7 - Exemption from arrest etc.

Jeffrey M Donaldson: I beg to move amendment No. 19, in clause 7, page 5, line 20, at end insert
‘for more than 28 days’.

Nicholas Winterton: With this it will be convenient to discuss the following amendments: No. 20, in clause 7, page 5, line 21, leave out paragraph (b).
No. 21, in clause 7, page 5, line 22, leave out paragraph (c).
No. 22, in clause 7, page 5, line 23, leave out paragraph (d).
No. 23, in clause 7, page 5, line 24, leave out subsection (3).

Jeffrey M Donaldson: The amendment is critical—not that many of the other amendments are not equally critical—to maintaining any credibility in the process. Under clause 3, when an application is made for a certificate, a senior member of the Police Service of Northern Ireland is required to state in writing
“that members of the Service have, and have had since before 1st November 2005, reasonable grounds for suspecting the applicant to be guilty of an offence to which”
the Bill applies. That provision places an obligation on the police not only to have reasonable grounds for suspecting, but subsequently to follow through on the issuing of a certificate of eligibility with an investigation into the matters that are to be the subject of the tribunal hearing.
In clause 7, however, serious limitations are applied to the powers that the police can exercise during the course of their investigation into the criminal or terrorist activity in which it is believed that the applicant has been involved. Once a certificate of eligibility has been issued, none of the following powers may be exercised in respect of an applicant with a certified offence:
“(a)a power of arrest or detention;
(b)a power of entry or search;
(c)a power to remand in custody or on bail;
(d)a power to take fingerprints or samples.”
Each power is a crucial to a police investigation, and to the capacity of the police to investigate rigorously an offence that they believe a perpetrator may have committed. To remove those powers would significantly undermine the capacity of the police to achieve convictions under a process that passes for justice. That is why we tabled our amendments.
In amendment No. 19, we ask the Committee to add to subsection (2)(a), so that the power of arrest or detention would remain in place for at least 28 days after the police had begun their investigation into an offence that they had reasonable grounds to believe the perpetrator may have committed. We believe that the police ought to have that power, because arrest and detention affords them the opportunity to question the suspect. We know that the questioning process is a key element in any police investigation. We chose 28 days because that is precisely the time that has been agreed by the House in respect of the Terrorism Bill for the detention of terrorist suspects. In the interests of retaining a degree of continuity and bringing, at least, some reality to the process, we felt that 28 days was appropriate.
In amendments Nos. 20, 21 and 22, we propose that the power of entry or search, the power to remand in custody or on bail, and the power to take fingerprints  or samples should remain at the disposal of the police. Again, we believe that those powers are crucial to ensure that the police have the capacity to carry out a thorough investigation into the offences that they believe may have been committed. Under the clause as drafted, a person who holds a certificate is exempt from those powers. That makes it virtually impossible for the police to carry out a proper investigation into the offences.
In a sense, the system is designed to fail to convict those believed to be involved in offences. The police have limited investigatory powers under the Bill, so they will be seriously hampered in pursuing their investigations of those offences. The Bill not only creates a situation whereby people will not serve a day in prison for their offences, but it will be virtually impossible for the police to secure a conviction. In the absence of conviction, no remedy will be available through the revocation of the licence in the event of a later breach of that licence. We therefore propose that the power of arrest is limited to 28 days and that the other exemptions are deleted. The amendments would, at least, allow a proper investigation to be held and a proper charge or charges to be brought against the perpetrator.
Subsection (3) provides:
“Where a person holds a certificate of eligibility, no power to obtain information exercisable in relation to criminal proceedings is exercisable”.
In amendment No. 23, we propose deleting that subsection.
The inability to arrest or, presumably, question a suspect—or in this case, someone believed to be guilty of an offence—will mean that inferences that might be drawn from silence, for example, will not be allowed. That means that a defendant under the scheme will not be in an equal position to a defendant who can have his silence at interview used against him. Because the police cannot arrest and detain perpetrators in these cases, they will lose the ability to interrogate a defendant who is brought in, questioned and then remains silent. That means that the silence of a defendant cannot be raised in court and used to disadvantage him in a trial under the scheme.
The Bill, as drafted, places the police at a significant disadvantage. It not only takes massive shortcuts through the judicial process and creates all kinds of new precedents for the British legal system, but it seriously undermines the capacity of the police to investigate crime. That is relevant to cases that may arise in the short term. Also, because the Government have not applied any time limit to the legislation—we touched on that point earlier—if the police, in the cold cases review that they are currently conducting, have reasonable grounds to suspect that someone is guilty of a serious crime, their current powers to arrest and detain an individual and take fingerprints and so on will be removed from them.
What about the victims who were promised that, in the cold cases review, no stone would be left unturned to find out the truth and to bring to justice those responsible for the perpetration of terrible crimes? The police will lose many of the powers that would have enabled them to achieve that objective. We believe that  that is wrong, and that is why we tabled the amendments. I hope that the Committee will support them.

Lorely Burt: The Liberal Democrats support amendments Nos. 20 to 22, which, by removing subsection (2)(b), (c) and (d), would allow entry or search to take place and would also allow for remand in custody or on bail and for fingerprints or samples to be taken. All those police powers are very important, as they help the police to build a case against a person that could result in a successful prosecution. Amendment No. 23 is important, too. By virtue of subsection (3), a person availing themselves of the scheme could not be questioned. How on earth are the police to build a case, given the provisions of the clause?
We have rather more reservations about amendment No. 19, which attempts to tie in the provisions of the Bill with the latest Terrorism Bill, by making the clause say that a person cannot be arrested or detained
“for more than 28 days”.
My reading of that is that one can arrest somebody for up to 28 days, and we are a bit troubled by that amendment. We look forward to listening to what the Minister, and possibly other Members, have to say about that.

Lady Hermon: I have just a few comments to add to those of the hon. Members for Lagan Valley (Mr. Donaldson) and for Solihull.
The hon. Member for Lagan Valley is quite right to say that we are talking about exceptional powers. As for the special prosecutor, we really need to think of the Bill as a complete entity; it is difficult when we consider clauses in this way, because we have not looked to later clauses, in which the special prosecutor is mentioned, and clause 8, which refers to the special tribunal.
As I interpret clause 7, it means that when a person has been issued with a certificate of eligibility, it is then as if there is a stop. There cannot be any further police investigation, arrest, detention, entry or search—there is no indication of which premises would be entered and searched; it could mean those of friends or accomplices. The clause is so general, and its wording is not appropriate. It will make it difficult for the special prosecutor who will be appointed to take the case forward before the special tribunal that we will come to in clause 8.
Clause 7 prevents further evidence, further searches, further samplings, further DNA and further details being taken in order to bring a successful conviction against the person who may hold a certificate of eligibility but has not been convicted of anything unless they are convicted under this extraordinary scheme by the special tribunal. The wording makes it almost impossible for a special prosecutor to be successful before a special tribunal in gleaning any additional evidence through searches, samples or whatever to make sure that the individual is convicted  and that those convictions are put on the licence that may be eventually given to the terrorist; it is almost like an antisocial behaviour order for terrorists.

Jeremy Hunt: Does the hon. Lady agree that the existence of the subsections that restrict police powers to conduct an investigation destroy a central plank in the Government’s argument that the scheme is not an amnesty because the people taking part will have to be subjected to full legal processes and will end up with a conviction? If we are hampering the ability of the police to undertake a proper, thorough investigation, that means that this is an amnesty in all but name.

Lady Hermon: Absolutely. I appreciate the intervention, which is spot on. The Minister is duty bound to explain to the Committee the justification for including a brake power on any further investigation to assist the special prosecutor in securing a conviction of those who are waving about their certificates of eligibility. I cannot understand why the Government have given such a general opt-out clause to bring any further evidence before the special tribunal. It behoves the Minister to explain the wording, generality and generosity of the clause.

Mark Durkan: As the hon. Member for Solihull has said, the addition of the words in amendment No. 19, which would allow the provision of power of arrest or detention for more than 28 days, would cause us particular difficulty. We do not agree that there should be a power of detention or arrest for up to 28 days anyway, and although we voted for that amendment in another Bill, the Terrorism Bill, that was to ensure that we did not face a period of three months. That other Bill will take its course and we will have a vote on that again. I am with the Liberal Democrats in that I see difficulties with amendment No. 19. However, we could support amendments Nos. 20 and 21.
The clause, as drafted, gives us great difficulty, which is why we are strongly sympathetic to the need to amend it. The fact is, to go back to our earlier discussions although not completely, that the clause ensures that once someone has a certificate, they are immune from any serious investigation. The evidence that could be brought would not be of the quality that the police and prosecution service would try to bring to a real court in a real prosecution. It means that this so-called prosecution system in this so-called court has protections and privileges that are so bespoke that it is very hard to take seriously the argument that we are not looking at an amnesty or amnesty’s close cousin.
The certificate of eligibility will mean that the police cannot pursue any serious evidence to put in front of the special tribunal, and the chances are that there will be a pretty high rate of acquittals for that reason. I understand that many senior police officers expect very few convictions, but the Bill has been sold on the basis that it will give people the satisfaction that those who would otherwise be walking round without convictions might be convicted.
The Secretary of State told us on a radio programme that people would be brought before a proper court, but we know that they will not. First, they do not have to be in the court, and secondly, we are not talking about a prosecution in the serious sense—not that the events of last week give us great confidence regarding proper prosecutions, when the Director of Public Prosecutions can suddenly withdraw charges at an unlisted hearing, supposedly in the public interest. We have had radio silence from the Government, Ministers and the Attorney-General ever since.
There is not a lot of assurance in that, and it just adds to the cynicism with which many regard this tightly designed scheme, which is aimed at ensuring that very limited information will be put before the special tribunal. It is wrong for the Government to provide that all the standard investigatory powers of the police automatically stop once there is a certificate.
I say that because, touching on a point made by other hon. Members, the Government responded in a positive and genuine way to a gross anomaly hanging over from the peace process. Many people who have suffered from unresolved crimes or lost loved ones in murders that went undetected or unprosecuted believed that they were left hanging, and that their history and need for truth was being washed away. The historic inquiries team was established so that issues pursued through the police ombudsman’s office in relation to the quality of past investigations—or the lack of them—could be dealt with if the ombudsman found that police investigations had been inadequate.
The Government, through the good offices of the then Secretary of State, the right hon. Member for Torfaen, moved to deal with the issue and committed significant moneys because they were needed. That was meant to be a confidence-building measure for victims; the historic inquiries team was to be resourced so that after the police ombudsman was given powers to look at past cases, it would be equipped to re-open those past cases, but the reality is that the provisions of the Bill—precisely and deliberately, I believe—undermine the possibility of the team getting to the truth and delivering justice.

Jeffrey M Donaldson: Does the hon. Gentleman agree that the provisions will not only extend to cases that arise from the historic inquiries team, but to cases that are presently the subject of public inquiries in Northern Ireland? Is it not remarkable that the republican movement are pressing for measures that will mean that if members of the Ulster Defence Association or another loyalist organisation are arrested in connection with the murder of Pat Finucane or Rosemary Nelson, the same restrictions will apply to the police?

Mark Durkan: The hon. Gentleman is right, because the provision freezes the police’s powers and duty to investigate in respect of any offence that comes under the provisions of the Bill. That includes any offence carried out not just by republican paramilitaries but by loyalist paramilitaries and people acting on behalf of the state to one degree or another. That frustrates the prospect of justice, and not only for families who have  been given some hope because the historic inquiries team is investigating their case, has established appropriate relationships with them, is following leads and publicly soliciting information and evidence through TV programmes. The clause will also frustrate any prospect of justice for those who campaign for or who have been granted public inquiries. That is another reason to oppose the Bill, and, in particular, this clause.
Nobody is suggesting that some people, simply because they have certificates of eligibility, should be subject to disproportionate investigation by the police. The fact remains, however, that the police must be free to investigate where necessary. That is why we would prefer to see clause 7 deleted from the Bill, and why we shall support some of the amendments. We shall not, however, support amendment No. 19.

Sammy Wilson: I do not want to repeat the points that have been made, but as a member of the Northern Ireland Policing Board, I raised the issue with the Deputy Chief Constable of the PSNI at last week’s Policing Board meeting. In public session he made it clear that, whatever the Secretary of State may have said on Second Reading and despite the defence that the Minister might mount here tonight, the police believe that this clause will make it virtually impossible for them to secure the necessary evidence to secure a conviction at a tribunal that will result in a licence being imposed.
The police have painted the following scenario: the historic inquiries team digs up some new evidence, lead or inquiry, and decides to talk to Mr. So-and-so. As soon as the police knock on Mr. So-and-so’s door, Mr. So-and-so is aware that the police are on to him. He knows that the police may wish to talk to him, question him, search his premises and collect fingerprints and other evidence. What does Mr. So-and-so do? He decides, “I’ll stop this whole process. I’ll apply for a certificate of eligibility.” That will prevent the historic inquires team from securing further evidence against him.

David Hanson: If the hon. Gentleman refers back to clause 3(2), he will see that no one can qualify for the scheme after 1 November 2005. Therefore that provision is already in place.

Sammy Wilson: But the police inquiry could have started long before then. In an historic case, the offence may have occurred a long time ago—but once the police ask someone about a particular crime, that person can immediately put a stop to the inquiry.
The Minister may say that the police would have to have reasonable grounds for speaking to an individual, so they would already have some evidence. However, last Thursday, in his enthusiasm to tell us why victims should not have any knowledge of certificates of eligibility that have been issued, he pointed out that when someone applies for a certificate and that certificate is granted,
“the police may not have sufficient information to charge the person”.
Indeed, he went further:
“when a person applies to the certification commissioner, in many cases charges will not have been brought. There may be grounds for arrest, but in some cases there may not even be that.”—[Official Report, Standing Committee B, 8 December 2005; c. 129.]
According to the Minister, when a person applies for a certificate, there may not even be grounds for arrest. The police may not have sufficient information to charge the person.

Peter Robinson: My hon. Friend will know that under the criteria set down in clause 3(2)(i), at the stage where a certificate of eligibility is being sought the police officer is only required to have “reasonable grounds for suspecting”. No police officer would send a case to the DPP or the special prosecutor if he just had reasonable grounds for suspecting; that is the stage when he would bring somebody in, start his cross-examination and follow up leads. The critical issue will be fingerprints, because those, and the other tests, will tell the police officer not just whether that person is responsible for the crime under review, but whether he was responsible for more up-to-date crimes.

Sammy Wilson: That is exactly the point that the police have been making, and the Minister made the same point in this Committee. When the certificate is being applied for, the police may not have sufficient information to charge a person. The Minister did not want the victims to know about the certificate, because it might be premature. If it is premature—by the Minister’s admission that might be so—how does he expect the police to build the case?
As the hon. Member for Foyle suggested, is not the true intent of the Bill to make it impossible for a case to be built against the person? The Bill is weighed against the victim and in favour of the defendant, and that may suit the Government in many cases. It will certainly suit the people who wanted the Bill in the first place to make it as difficult as possible to get convictions—and on the Minister’s own admission, and on the evidence that the police have put forward and the points that they have made, it is clear that that will be the outcome.

David Hanson: I refute the suggestion made by the hon. Member for East Antrim that the Government do not wish to seek convictions under the scheme. If that were so, it would have been easy to design the scheme differently to make sure that that outcome was achieved. The Government have designed it to ensure that there is accountability, potential convictions if people are found guilty of charges, and a release on licence. The clause 7 exemptions are key elements in the scheme and reflect the 2003 proposals in detail; they allow the certificate holder to return to Northern Ireland without risking arrest, being questioned, or otherwise, by the police.

Lady Hermon: Will the Minister explain how that reflects in detail the 2003 proposals?

David Hanson: The clause 7 exemptions are included in the 2003 proposals.

Jeffrey M Donaldson: I have checked the proposals that were published in the annexe to the joint declaration at Hillsborough in 2003, but I cannot see spelled out in detail the restrictions that clause 7 places on the police. The annexe states simply that the defendant, or applicant in this case,
“would be able to plead not guilty and ... instruct a defence to be mounted. The Special Judicial Tribunal would not have the power to remand in custody.”
It does not specify the restrictions that the Government seek to impose on the police.

David Hanson: Paragraph 7 of the proposals that I have in front of me says:
“Once someone had been declared eligible, he or she would be free to return to Northern Ireland without risk of arrest for questioning or charge in relation to a qualifying offence.”

Jeffrey M Donaldson: I thank the Minister. That is in paragraph 7, but it does not say here—[Interruption.] As my hon. Friend the Member for Belfast, East, rightly points out, that is only for someone returning to Northern Ireland from outside the jurisdiction. As we know, Sir Nicholas, the net for the legislation is cast much wider than that. Nowhere here does it say that the police cannot take fingerprints or do the other things that clause 7 stops them doing.

David Hanson: I referred to that in the context of those who are returning from outside the jurisdiction. The historic inquiry team proposals can continue, and only at the stage where an individual is charged can they apply for a certificate. Under the historic inquiry route, an individual may have an investigation by the police undertaken against them, and at some point they may be charged by the police for an alleged offence. At that stage, they can apply for a certificate.

Jeffrey M Donaldson: If that is the case, then why do the Government not distinguish in the Bill between those returning to the jurisdiction—the real on-the-runs, for whom the original deal was done—and those in the jurisdiction who the police may suspect as a result of the cold case inquiry team, whose work is ongoing and started well before 1 November. Where do we draw the line here?

David Hanson: If your patience will allow, Sir Nicholas, I refer the hon. Gentleman back to certificates of eligibility and their criteria. Returning to clause 3(2):
“An applicant falls within this subsection”
on a number of grounds. The first is when the police suspect that, prior to 1 November 2005, the applicant was guilty of an offence; secondly,
“the applicant would have been arrested for the offence”
if he had been in the United Kingdom at the time; thirdly, that
“the applicant has been charged with an offence to which this Act applies”—
that relates to the historical inquiry team aspect—or, fourthly, that
“the applicant has been convicted of ... an offence and ... has not been sentenced for it”,
or,
“is unlawfully at large”.
The potential elements for clause 7 are therefore dealt with in the eligibility criteria. I shall try to clarify the point again for the hon. Gentleman: for people currently on the run, the exemptions relating to certified offences will certainly apply. However, those who enter the scheme as a result of being charged, say, as a result of the historical inquiry team review, will be unable to benefit from most of clause 7’s provisions because the very fact that they have been charged would mean that the police investigation had been completed. They can therefore qualify for the scheme. I hope that that helps the hon. Gentleman.

Lady Hermon: The Minister is confirming to the Committee what some of its members have believed all along: that the legislation primarily benefits OTRs to the disadvantage of others. The Minister has confirmed that the clause 7 powers reflect the agreement made in 2003 and has now, in reply to the hon. Member for Lagan Valley, said that the cold case review team would be something different. So the Minister can now confirm to the Committee what we thought all along. This clause almost exclusively benefits OTRs who may wish to return.

David Hanson: The clause will benefit individuals who have not yet been charged, because of their suspected offences, or who would have been arrested for offences but for the fact that they were outside the United Kingdom. Again, it does not impact those who are involved through the historic inquiry team because, returning to the certificate of eligibility aspect, individuals who can join the scheme because they are potentially being charged under that team’s work cannot avail themselves of the provisions of clause 7 until such time as they have been charged. The very fact that they have been charged means that the police will not necessarily need to investigate them further by taking samples, or using other aspects of the scheme.
The answer to the hon. Lady’s question is therefore yes, but the purpose of the scheme is to ensure that we get individuals back to face the special tribunal while the eligibility criteria elsewhere mean that the historic inquiry team will not be hampered by the clause 7 provisions.
I was questioned, on a fine BBC programme, about the comments of Paul Leighton, the Deputy Chief Constable, at the Policing Board that the hon. Member for East Antrim attended last week. Following questions from that hon. Gentleman, the Deputy Chief Constable made some comments on this matter. I hope that I can clarify, both for the hon. Gentleman and for the Deputy Chief Constable, that nothing in the clause will hamper or hinder the progress of the historic inquiries team, which has a mandate to investigate unsolved crimes.
We all want the individuals who have been responsible for those crimes to be identified, we want the victims to know, if possible, what has happened to their loved ones, and ultimately, if evidence can be produced, we want individuals to be charged with those offences. At the moment that they are charged they can, under the eligibility criteria, apply for admission to the scheme. That is the stage for the exemptions, and they would not hinder investigations by the police, who would already have charged individuals under the historic inquiries team.
I accept that there is a difference of opinion in the Committee. Once individuals have been charged under the historic inquiries team and have applied for their certificate, they will progress to the special tribunal. If found guilty, they will be convicted and, if convicted, released on licence—but they will still have been charged under that scheme. I hope that that is of some assistance to the hon. Lady.

Lady Hermon: Will the Minister confirm what I think he is saying, so that we are all clear on this point? Let us say that an on-the-run terrorist who has committed the most heinous of crimes returns to Northern Ireland waving their certificate of eligibility. Clause 7 will then kick into action, meaning that that person cannot be arrested or detained, their home or other premises cannot be entered or searched, they cannot be put in custody or bailed—indeed, if they are not in custody, obviously there can be no bail—and fingerprints or samples cannot be taken. In other words, if a person who has been on the run for however many years returns to Northern Ireland with their certificate, that is the end of the track for them. The special prosecutor will have no evidence on which to obtain a conviction that would allow the issue of a licence on which conditions could be imposed. Is that what the Minister is persuading us is the effect of the clause?

David Hanson: I am saying that individuals charged by the historic inquiries team will have been charged because it will have reached conclusions to that effect. At that stage, individuals under the historic inquiries team can apply for a licence and will not be affected by the clause, because to enter the scheme, they will already have been charged. In relation to individuals on the run, subsection (2)(a) of clause 3, “Certificates of eligibility”, says that there must be
“reasonable grounds for suspecting the applicant to be guilty of an offence”
and that
“the applicant would have been arrested for the offence before that date but for the fact that he was believed to be outside the United Kingdom”.
Certainly there is the potential for those investigations and the information not to have an impact on that, but the very fact of eligibility means that the individual is under reasonable grounds of suspicion and/or would have been arrested had they been in the jurisdiction at the time. I am fairly confident that such a case could go to the special tribunal for conviction in due course.
I stress that the exemptions do not apply at large, but only in relation to certified offences. Those who have entered the scheme as a result of being charged will be unable to benefit from most of the provisions in the clause. I believe that to delete them would not be in the interests of the good management of the scheme. I therefore urge my hon. Friends to reject the amendments.

Jeffrey M Donaldson: I note that the Minister has made an effort to clarify the confusion arising from the application of the clause. I understood him to say that if the cold case review team suspects that a member of a paramilitary organisation may have been involved in, for example, a murder, it can, notwithstanding the Bill when it is enacted, arrest that individual, interrogate them, take fingerprint samples and so on. Only when they charge that individual can the individual apply for a certificate of eligibility.
The hon. Member for North Down is correct to say that in the main, the provision applies to those who are on the run and outside the jurisdiction. Notwithstanding that, we still believe that the basis for our amendments, which aim to uphold the right of the police to hold a proper investigation, is crucial. If the Government do not want to give the impression that the provision is an amnesty for on-the-runs, they must ensure that the investigatory powers of the police are sufficient to ensure that prosecutions can be brought through the special tribunal, and that the special prosecutor has some evidence to present to the tribunal to secure those prosecutions.
It is difficult to see how the police can gather evidence to present to the tribunal and the special prosecutor to secure a conviction when they cannot arrest or detain the suspect, cannot enter or search the suspect’s premises or other premises, cannot remand the suspect in custody or on bail, and have no power to take fingerprints or samples. It means that they do not have the capacity to check whether the suspect might have been involved in other crimes. For those reasons, and because we are anxious to ensure that the provision does not amount to an amnesty for those who are on the run and want to evade the judicial process, we shall press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided:  Ayes 9, Noes 20.

NOES

Question accordingly negatived.

Motion made, and Question put, That the clause stand part of the Bill.

The Committee divided:  Ayes 16, Noes 13.

NOES

Question accordingly agreed to.

Clause 7 ordered to stand part of the Bill.

Nicholas Winterton: I have been approached by the usual channels representing the political parties that are taking part in our discussions, and I believe that it will be for the benefit of the Committee and the proper conduct of our business if I suspend the sitting for 20 minutes.

Sitting suspended.

On resuming—

Clause 8 - Trial by Special Tribunal

Nicholas Winterton: I hope that people feel rested, and that we can begin round 3 of today’s sitting. The first item is really a matter left over from an earlier debate: the Liberal Democrats suggested that they wanted to move amendment No. 70 formally, so I ask Lembit Öpik to do so.

Lembit Öpik: I feel a lot calmer now, so on the basis of the arguments put forward by the hon. Member for Belfast, East, I shall not move amendment No. 70 after all. It would be inconsistent for me to move my amendment, given our earlier debate. I simply tell the Minister that he is definitely on a promise to deliver something meaningful on the subject of defendants appearing, and we shall be watching him.

Peter Robinson: I beg to move amendment No. 28, in clause 8, page 6, line 3, at end insert—
‘(6A)Where the Special Tribunal convicts and sentences a person of an offence he must make a public expression of remorse, previously approved by the Special Tribunal, before a licence is granted.’.
We have imposed strictures on ourselves, and this is the test of them. The amendment is fairly self-explanatory; it deals with the issue of an expression of remorse. Let me translate for hon. Members from the rather small logistical issues that we have discussed thus far to the stage after the certification process, the special tribunal and all prosecution issues. Let us say that there has been a conviction in court. Someone has been found guilty by the special tribunal, and sentence is about to be handed down. If they are to benefit from the Bill, and are not to be required to spend even a day in prison, the very least that victims can expect is for them to be prepared, at that stage, to show some remorse and indicate their sorrow and regret.

Tom Harris: I understand the hon. Gentleman’s point, and I have some sympathy with it, but does he not see a contradiction, in that prisoners previously released on licence under the Good Friday agreement were not obliged to make a similar public statement? It might be contradictory to suggest that those covered by the Bill make a commitment that other prisoners on an early release scheme were not asked to make.

Peter Robinson: I am very happy to ensure parity; if the hon. Gentleman wants parity, let us have it. Let us have those caught under the legislation put in prison for up to two years. But if they are not going to go to prison for two years—if they are to walk straight out of court—the very least that can be expected is for them to show some sorrow. Quite frankly, if they are not sorry for what they have done, then why on earth are the Government jumping through hoops for them, and allowing them to go out on the streets without any regrets for the murder or other terrorist activity that they committed? It just would not be a sensible course for the Government.
The Government should be prepared to accept this minor requirement, which does not fly in the face of any of the deals that the Government have done with the IRA. It is a minimal requirement, and I hope that the Minister will accept it.

Lorely Burt: We have a great deal of sympathy with the sentiments behind the amendment. Much of what the victims’ families want is for someone to take responsibility for the death of their loved one, and to show some signs of remorse for it. I wonder, though, whether a forced expression of regret is the right way to go about that. Is there not a risk that someone will just say that they are sorry so that they can get a licence? Although I agree that an expression of sorrow and regret would no doubt help the victims, surely victims would want it to be genuine.

Mark Durkan: I never thought that I would see the day when I would be cautioning the DUP on the dubious value of an act of contrition, but requiring a statement of remorse as part of the procedure would mean that we ended up with something formulaic and empty. After a while, I imagine that the expressions of remorse would all be exactly the same, particularly if they had to be approved by the tribunal. Imagine just how stylised and formulaic they would become. They would be pretty empty and meaningless, particularly to victims. I actually think that an empty statement of remorse would be more offensive to victims than almost anything else, because the perpetrator could hide behind that statement.
We might be able to hide behind a statement of remorse as something that improved the Bill, but such an empty process would not make victims feel any better. Such an expression of remorse could cause offence, and where it did not cause offence, it would degenerate into farce.
There is one other reason why we need to be careful about including such a provision. I believe that there will not be many convictions under this procedure, but someone who applies under the scheme and asserts their innocence might just end up being found guilty. In a previous sitting I said that I knew of a case involving a number of young men in my constituency, some of whom were at school with me, who fled; they were on-the-runs. I believe that they were innocent. If there is to be a scheme such as this, I want them to be able to benefit from it, but I want them to assert their innocence in court. I would not want a situation where if they were found guilty, in order to benefit from the scheme, having asserted their innocence, they had to express remorse. That would go against all sorts of natural justice. In the past, that has been an issue when prisoners go through the life sentence review board process; the test of remorse has been imposed on people who were still insisting on asserting their innocence. We would be better off without the amendment.

David Hanson: For the reasons mentioned by my hon. Friend the Member for Foyle—I am pleased to agree with him, and for him to agree with me—and the hon. Member for Solihull, I am unable to accept the amendment. They have sensibly pointed out two elements that give me cause for concern in the amendment tabled by the hon. Member for Belfast, East.
The first is that expressions of remorse are not required in normal trials, nor were they required under the early release scheme, as my hon. Friend said. The Government are seeking to put terrorist suspects through a judicial process, albeit one that results in release on licence. It is a process that includes conviction and sentence in as normal a way as can be done in the special tribunal circumstances. To add a requirement that a person who is found guilty must make an expression of remorse has nothing to do with the trial, but in many ways seeks to move towards what the Government have already considered and not acted on, in part because of the recommendations of the Northern Ireland Affairs Committee—a truth and reconciliation commission of sorts. Such an approach is not our purpose in the legislation.
The second point relates to what was mentioned by my hon. Friend the Member for Foyle and the hon. Member for Solihull. How can we judge, measure or guarantee the quality or the nature of any remorse shown after the conviction has taken place?

Mark Hendrick: Is it not the case that if there is no obligation to express remorse or give any apology, any apology or remorse that is shown would be valued much more by the victims, because it would be voluntary?

David Hanson: My opposition to the amendment does not preclude the idea that if someone genuinely wants to show remorse they can do so when the person presiding over the trial gives them an opportunity to say something at the end of the conviction. Such remorse would be a genuine sentiment, which, I am sure, would be welcomed by the victims. To put a formulaic provision in place whereby an individual had to express remorse would mean that we would risk individuals coming forward and uttering not serious remorse, but a token expression of it.
As my hon. Friend said—again, I am pleased to agree with him—somebody who believes himself to be innocent could still be found guilty. Under the formula proposed, such a person would have to express an element of remorse that they would not feel, given their deeply held conviction that they were innocent of the charges. For both those reasons, I ask the hon. Gentleman to withdraw the amendment.

Peter Robinson: I shall, of course, withdraw the amendment—but for none of the reasons that have been suggested. It was something of a probing amendment to set people up for a later amendment to clause 11. We shall come back to the issue; none of the arguments that have been provided will apply when we deal with those who, far from being apologetic, glorify the activities in which they have been involved and the fact that they have been able to walk out of the court without having to serve a day in prison. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Durkan: I beg to move amendment No. 260, in clause 8, page 6, line 10, at end insert—
‘(7A)A person tried under this section must be tried in open court.’.

Nicholas Winterton: With this it will be convenient to discuss amendment No. 43, in schedule 2, page 17, line 42, at end insert—
‘6AThe Special Tribunal may not make a direction denying members of the public access to any hearing.’.

Mark Durkan: It is a fundamental provision of law that justice be done in public. Amendment No. 260 is self-explanatory. It would oblige a trial to take place in open court. Why do we need that? Because of the suspicions about so many other ruses for which the Bill provides, and because of experience. The provision of law that justice be done in public was undermined in the north when there was screening of witnesses in Diplock courts. It was undermined by witnesses such as Colonel J., the head of the Force Research Unit, being able to testify anonymously at Brian Nelson’s trial. The Inquiries Act 2005 undermined the independence of public inquiries, with the Secretary of State reserving the right to prevent any information from being made public by an inquiry.
Provisions in other clauses of the Bill mean that the Secretary of State can at any stage, for any reason of his own choosing, override the requirements of the Bill for information to be provided to victims and for names to be provided and so on. There is every reason, therefore, to worry that the Government will at some stage try to take all this a step further, either by proposing amendments obliging the special tribunal to meet in private when the Secretary of State so directs or, when the tribunal is established, by applying to it for private hearings.
As we know from other recent events, the Government may have another option: to ensure that the special prosecutor does not bring a case to court at all and drops the charges. If we follow the Government’s defence of recent events, there is no reason why that would not happen under their plans for this legislation.
We believe that private hearings must not be allowed if justice is to be done and truth is to be told. That is why we propose amendment No. 260: it would oblige the special tribunal to meet in public. Amendment No. 43, tabled by the Democratic Unionist party, would have a similar effect, so we are delighted to support that, too.

Peter Robinson: As the hon. Member for Foyle says, amendment No. 43 would have the same impact as amendment No. 260. We therefore see no need to press ours; we are happy to support his. It is a fundamental principle of British law that justice should not only be done but be seen to be done. The people who carried out the activities in question planned them in a hole in the corner. They probably hid behind a hedge and waited for someone. It is about time they appeared in the open, so that the victims can see those who are responsible for the agony that they have suffered, and they come under the full scrutiny of the public. If all that those people have to suffer is being held up to public ridicule, that is the very least that should occur. It should be an open court, with the press entitled to be there and full reporting facilities available.

David Hanson: I hope to be able to reassure my hon. Friend the Member for Foyle and the hon. Member for Belfast, East. The special tribunal will have the  same powers, authorities and jurisdiction as the Crown court, subject to any provisions in the Bill that impact on it. No provisions in the Bill will prohibit public access to the tribunal in any way, shape or form. However, the tribunal should not be prevented from availing itself of powers similar to those that the Crown court could exercise, should the presiding judge want to restrict public access on the basis of protection of vulnerable witnesses, for example.
The same powers currently exist for the Crown court presiding judge as will exist for the special tribunal presiding judge. There are circumstances in which public access can be restricted in the Crown court, such as for cases in which there may be vulnerable witnesses, or a need to protect a witness from potential intimidation. The Crown court exercises those powers very sparingly. The special tribunal will have the same powers. I do not expect it to exercise them, but again, for the reasons that I have explained, I have reserved the right for the presiding judge, not for the Government, to determine whether the circumstances require them to be used.
Generally, however, no provisions in the Bill prohibit public access, and I anticipate that the vast majority of cases brought before the tribunal will be open to the public and to public scrutiny. The only time that they will not be open will be if the presiding judge deems that they should not be, to protect a witness or prevent intimidation.I hope that that reassures both hon. Members and that they will not press their amendments to a Division.

Nicholas Winterton: I shall call the hon. Member for Belfast, East first, because the hon. Member for Foyle has the lead amendment. Does the hon. Member for Belfast, East want to respond to the Minister?

Peter Robinson: I do not intend to press amendment No. 43 to a vote.

Mark Durkan: I heard what the Minister said, but if what he said is so, there can be no reasonable objection to the amendment, because all it would do is write that assurance into the Bill, albeit in a more meaningful and reassuring way.

David Hanson: The amendment would not do that. It says:
“A person tried under this section must be tried in open court.”
As I said to the hon. Gentleman, if that tribunal was a Crown court, the presiding judge would have discretion in exceptional circumstances to restrict public access if witnesses were being intimidated or if vulnerable witnesses could not perform in an open court. The amendment would restrict the power of the presiding judge in the tribunal to have that very limited opportunity to restrict public access, as he could do if the case was brought before a Crown court.

Mark Durkan: Again, I am grateful to the Minister for trying to make the point. We know from the other provisions, however, that there will be all sorts of limitations on whatever information is brought before the tribunal. The Secretary of State can insist on anonymity as far back as at the certification stage, and can certify that all sorts of information relevant to cases is not to be given to anyone other than to the certification commissioner and himself. I therefore do not see the need for the tribunal to have the sort of protection that the Minister mentions. In any case, if other provisions ensure that the tribunal acts with the same powers as the Crown court or the High Court, again I do not see the need for the Government to resist the amendment.

Question put, That the amendment be made:—

The Committee divided:  Ayes 8, Noes 16.

NOES

Question accordingly negatived.
Further consideration adjourned.—[Mr. Coaker.]
Adjourned accordingly at fifteen minutes to Twelve midnight till Thursday 15 December at Nine o’clock.